certificate of interested parties
TRANSCRIPT
CERTIFICATE OF INTERESTED PARTIES
Petitioners hereby incorporate by reference their Certificate of Interested
Parties presented in their Petition filed December 2 1,20 10.
STATEMENT OF RELATED CASES
Petitioners hereby incorporate by reference their Statement of Related
Cases presented in their Petition filed December 2 1,20 10.
GRAP 16(A)(7)(B) CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION
This Opening Brief complies with the type volume limitation of Rule
16(a)(7)(B) because it contains approximately 5,960 words excluding the parts
otherwise exempted from Rule 16(a)(7)(B)(iii).
Dated: December 27,20 10.
LUJAN PEREZ LLP n
By: DAVID 4. LUJAN, E Attorneys for
TABLE OF CONTENTS
Page
. . TABLE OF AUTHORITIES ........................................................................ 11
STATEMENT OF JURISDICTION ............................................................. 1
STATEMENT OF ISSUES ........................................................................... 2
THE PARTIES ............................................................................................. 3
STATEMENT OF FACTS ............................................................................ 4
SUMMARY OF THE ARGUMENT .......................................................... 11
ARGUMENT .............................................................................................. 13
I . Writ of Mandate ............................................................................... 13
............................. . A The Remedy of Mandamus is Warranted 13
B . The November 6. 20 10 Certification and .the Certificates of Election Should be Annulled and Canceled Because All Purported Members of the GEC Lacked Valid Appointments to Office ......................................................... 18
I1 . Writ of Prohibition ........................................................................... 24
CONCLUSION ........................................................................................... 25
PROOF OF SERVICE ................................................................................ 26
TABLE OF AUTHORITIES
CASES
Alta Loma Sch. Dist. v. San Bernardino County Comm. on Sch. Dist. Reorganization, 124 Cal. App. 3d 542 (1 98 1). .................. .17
Arntz v. Su erior Court, 187 8al. App. 4th 1082, 114 Cal. Rptr. 3d 561 (2010). ........................ 14
Bodinson Mfg. Co. v. Cal. Employment Comm'n, 17 Cal. 2d 321(1941) ............................................................. 14
Bus. & Professional Peo le for the Pub. Interest v. Ill. Commerce Comm'n 136 Ill. 2d 192, 5& N . E . Z ~ 693 (1989) ....................................... 21
Caldwell v. Nolan, 522N.E.2d 175 (Ill. App. Ct. 1988) ......................................... 14,15
Camacho v. Estate of Gumataotao, 2010 Guam 1 .................................................................... ..I9
City of Hoboken v. Cit of Jersey Cit 789 A.2d 668 @?J. Super. Ct. J%w ~ i v . 2001). ............................ .22
County of Alpine v. County of Tuolumne, 49 Cal.2d 787 (1958). ............... 17
County of Sacramento v. Hickman, ........................................................ 428 P.2d 593(Ca1.1967). .1
Cruz v. Guam Election Comm'n, 2007 Guam 14.. .................................. .1
Dep't of Agric. v. Civil Sew. Comm'n (Rojas), 2009 Guam 19.. ................. 17
Estate of Kramme ...................... 20 Cal. 3d $67,143 Cal. Rptr. 542, P.2d 1369 (1 978). .19
Haslund v. City of Seattle, .................................... 86 Wash. 2d 607, 547 P.2d 1221 (1976). -22
Hembree v. City of Stilwell, 597 P.2d 1218 (Okla. 1979) ..................................................... 15
In re Jul -Au ust, 2003 DeKalb County Grand Jury, ......................................... 5& ~ . f , 2 d 674 (Ga. Ct. App. 2004). .23
Irwin v. Crawford, 78 S.E.2d 609 (Ga. 1953). ........................................................ 23
Jolicoeur v. Mihal 5 Cal. 3d 5&, 96 Cal. Rptr. 697, 488 P.2d 1 (1971) ......................... 14
League of Women Voters of Atlanta-Fulton County v . City of Atlanta ....................................................... 264 S.E.2d 859 (Ga . 1980) 23
........................................ Limtiaco v . Guam Fire Dep't. 2007 Guam 10 14
Miller v . Greiner. 60 Cal . 2d 827. 36 Cal . Rptr . 737. 389 P.2d 129 (1 964) ...... 14
Morgan v . City of Los An eles Bd . of Pension Comm'rs 85 Cal . App . 4th 83%, 102 Cal . Rptr . 2d 468 (2000) ........................ 14
Nat'l Union Ins . Co . of Pittsbur Pa . v . Ins . Comm'r of Guam, Civil No83-0037A, 1984% 48863
............................................. (D . Guam App . Div . May 4. 1 984) 17
People v . Quenga. 1997 Guam 6 ...................................................... 17
. .............................. People v Superior Court (Laxamana). 200 1 Guam 26 15
People v . White. 67 N.E.2d 498 (I11 . App . Ct . 1946) ................................ 22
..................................................... Sablan v . Gutierrez. 2002 Guam 13 3
Select Base Materials. Inc . v . Bd . of Equalization. 51 Cal . 2d 640 (1959) .............................................................. 19
........................... Siddens v . Indus . Comm'n. 304 I11 . App . 3d 506 (1999) 22
Sorensen Television Sys., Inc . v . Superior Court of Guam. 2006 Guam 21 .................................................................... 15
South Tacoma Wa LLC v . State. 233 P.3d 8 7 p ( ~ a s h . 2010) ...................................................... 22
State Bd . of E ualization v . Watson. 437 p.21761 (Cal . 1968) ......................................................... 2
State of Texas ex re1 . Thomas v . Banner. 724 S.W.2d 8 1 (Tex . Crim . App . 1987) ....................................... 15
Topasna v . Superior Court of Guam. 1996 Guam 5 .................................. 1
Cresci JV v . City & County of San Francisco. .................................................... 2 Cal . App . 4th 746 (1 999) 14 Transdpi
Turlock Irri ation Dist . v . Hetrick, 71 Ca 9 . App . 4th 948, 84 Cal . Rptr . 2d 175 (1999) ........................... 21
Underwood v . Guam Election Comm'n (Camacho). 2006 Guam 17 ............ 17
Underwood v . Guam Election Comm'n (Camacho). 2006 Guam 19 ...... .1. 14. 17
Venice Town Council. Inc . v . City of Los Angeles.
. . . . ......................... 47 Cal App 4th 1547. 55 Cal Rptr 2d 465 (1 996) 14
STATUTES
3 G.C.A ............................................................................... .16, 19
........................................... 3 G.C.A. $ 2101(a) 3.4.8.9.10. 11.12.18.19. 20
................................................................... 3 G.C.A. $ 2101(d) 12. 20
3 G.C.A. Chapter 11 ..................................................................... 16
...................................................................... 3 G.C.A. $ 11123 13. 16
..................................................................... 3 G.C.A. $ 11133 13. 16
............................................................................ 4 G.C.A. $ 2103 19
4 G.C.A. $ 2103.9. .................................................................... 18. 19
5 G.C.A. Chapter 9 ...................................................................... 16
.......................................................................... 5 G.C.A. $ 9200 16
7 G.C.A. $ 3 107(b) ....................................................................... 1
.......................................................................... 7 G.C.A. $ 31202 13
.......................................................................... 7 G.C.A. $ 31203 13
7 G.C.A. $ 31301 .......................................................................... 24
......................................................................... 7 G.C.A. $ 31302 24
48 U.S.C. $1422 ......................................................................... 18
48 U.S.C. $ 1424-l(a)(l). (3) ............................................................. 1
OTHER
. Black's Law Dictionary 13 13(7th ed 1999) ............................................ 3
STATEMENT OF JURISDICTION
The Court has original jurisdiction over proceedings for mandamus and
prohibition pursuant to 7 G.C.A. @ 3 107(b) and 48 U.S.C. @ 1424-l(a)(l). See
Underwood v. Guam Election Comm'n (Camacho), 2006 Guam 19 7 6 (writ of
mandamus); Topasna v. Superior Court of Guam, 1996 Guam 5 7 4 (writ of
prohibition). Section 1424- 1(a)(3) of the Organic Act of Guam provides that
the Supreme Court shall have "jurisdiction to issue all orders and writs in aid of
its original jurisdiction." 48 U.S.C. @ 1424-1(a)(3); Underwood, 2006 Guam 19
7 9.
The decision whether to exercise original jurisdiction over petitions for
extraordinary writ relief in a particular case lies within .the sound discretion of
the Supreme Court. Underwood, 2006 Guam 19 7 10. Except in "very unusual
cases," the Supreme Court will decline to exercise its original jurisdiction to
issue writ relief where the lower court may grant the writ relief requested. 7
14. However, one such "very unusual" case is where the "'issues are of great
public importance and should be resolved promptly."' Id. 7 15. Therefore, the
exercise of jurisdiction will follow if the Court decides that the case is one of
great public importance requiring prompt resolution. Id. 7 18; Cruz v. Guam
Election Comm'n, 2007 Guam 14 7 3; County of Sacramento v. Hickman, 428
P.2d 593, 611 (Cal. 1967) (California Supreme Court accepting original
jurisdiction over mandamus petition since tax matter is of great public
importance and must be resolved promptly); State Bd. of Equalization v.
Watson, 437 P.2d 761,762-63 (Cal. 1968).
In this case, this Court has already determined that the "substantive issue
this court must consider is of great public importance which must be resolved
promptly." (Order at 2 (Dec. 23, 2010)). Accordingly, the Court's exercise of
its original jurisdiction is proper.
STATEMENT OF ISSUES
Should the actions of Respondents taken at a meeting of the GEC held on
November 6, 2010, to certifL the results of the 2010 General Election for the
gubernatorial race, and the actions taken by Respondents, including Mesa,
Ruth, Taitano, and Cruz, on or about November 30,2010, to sign certificates of
election in favor of Real Parties in Interest Calvo-Tenorio (the Guam
Republican Party candidates for governor and lieutenant governor), be
invalidated, annulled, and/or canceled, on grounds that all seven (7) putative
members of the Guam Election Commission lacked legally valid appointments
as members of the Commission, thereby rendering all purported actions taken
on the dates in question invalid, null, and void?
THE PARTIES
Petitioner Carl T.C. Gutierrez ("Gutierrez") is a citizen and resident of
Guam, and was the Democratic Party candidate for governor in Guam's
November 2, 20 10 General Election ("the General Election"). Petitioner Frank
B. Aguon, Jr., ("Aguon") is a citizen and resident of Guam, and was the
Democratic Party candidate for Lieutenant Governor in the 2010 General
Election. Petitioners Gutierrez and Aguon (collectively "Gutierrez-Aguon" or
"Petitioners") are duly registered voters in Guam.
Respondent Guam Election Commission ("GEC" or "the Commission")
is an "autonomous instrumentality" and "independent commission of the
government of Guam." 3 G.C.A. 6 2 10 1 (a). By law, the GEC consists of seven
(7) members, each serving a statutory term of two (2) years. Id. The statue
contains no provisions for a holdover term beyond expiration of the two-year
terms. To effectuate a valid appointment to office, the Governor must appoint
six (6) of the members from a list of "recommendations made by the recognized
political parties of Guam," such recommendations resulting "via a duly passed
resolution"' of the political parties. Id.; see generally Sablan v. Gutierrez, 2002
Guam 13 77 13-14. The seventh member, also serving a two-year term, is
1 A "resolution" is usually a "formal expression of the opinion or will of an official body or public assembly adopted by vote." BLACK'S LAW DICTIONARY 13 13 (7th ed. 1 999).
"selected and appointed" by at least four (4) of the other six (6) members
appointed by the governor. 3 G.C.A. 2 10 1 (a). At times relevant to .the
events described herein, the seven (7) putative members of the GEC are and
were: Respondents Joseph Mesa ("Mesa"), Martha Ruth ("Ruth"), and John
Taitano ("Taitano"), all Republicans; Respondents Alice Taijeron ("Taijeron"),
John Terlaje ("Terlaje"), and Joshua Tenorio ("Tenorio"), all Democrats; and
Respondent Robert Cruz ("Cruz"), as the seventh member, who was
purportedly selected and appointed by .the appointees from the political parties.
Real Parties in Interest Edward B. Calvo and Raymond Tenorio
(collectively "Calvo-Tenorio") are citizens and residents of Guam, and were the
Guam Republican Party candidates for Governor and Lieutenant Governor,
respectively, in the 201 0 General Election.
STATEMENT OF FACTS
The 2010 General Election was held on November 2, 201 0, for various
offices including, but not limited to, governor, lieutenant governor, certain
judiciary officials, senators of the Guam legislature, attorney general, Agat vice
mayor, members of the Consolidated Commission on Utilities, and Guam's
Delegate to the U.S. House of Representatives. Petitioners Gutierrez-Aguon
ran on the Democratic ticket for Governor and Lieutenant Governor against the
Real Parties in Interest, Calvo-Tenorio.
As to the gubernatorial race, the reports released by the GEC in the early
morning of November 3, 2010, showed Gutierrez-Aguon garnering
approximately 19,296 votes and Calvo-Tenorio garnering approximately 19,879
votes, with 484 overvotes, 702 undervotes, 165 Republican write-in votes, and
120 Democrat write-in votes.
As such, the gubernatorial race was found to be extremely close, thus
prompting, in part, a decision of the GEC on or about November 5, 2010, to
conduct a recount of the ballots for the gubernatorial race. A machine recount
was held on November 6,2010, with the GEC rejecting a proposal to conduct a
manual recount. The machine recount was completed in the evening of
November 6, 2010, and, despite serious irregularities in the election having
been reported to the GEC and unresolved at that point, six (6) members of the
GEC - Mesa, Ruth, Taijeron, Terlaje, Tenorio, and Cruz - nonetheless voted,
on that same day, November 6, 2010, to certifL the results of the General
Election for the gubernatorial race as determined by the machine recount. (&
Petitioners' Excerpts of the Record ("ER) (filed concurrently herewith) at
ER0048-52.) The GEC tabulation reported approximately 20,066 votes for
Calvo-Tenorio, approximately 19,579 votes for Gutierrez-Aguon, 164
Republican write-in votes, and 121 Democrat write-in votes. (ER at ER003 T[ 6,
ER0035.) The motion to certifL was made by Mesa. (ER at 0050-51.) The
only putative member absent from that meeting was Taitano, who was
reportedly off-island.
Subsequently, upon information and belief, at a purported meeting of the
GEC held on November 30, 2010, only four (4) putative members-Mesa,
Ruth, Taitano, and Cruz-signed certificates of election for Calvo-Tenorio.
An examination of the various appointments of the alleged members of
the GEC demonstrates the following, upon information and belief:
1. Joseph Mesa-Mesa was appointed by Governor Felix P. Camacho to
be a member of the GEC on June 18,2007, for a term expiring on September 2,
2008, by the very terms of the Governor's own appointment letter. (See ER at
ER002 7 4(i), ER005.) Thus, Mesa's term expired more than two (2) years
prior to the 2010 General Election. In a letter dated December 22, 2010, Gov.
Camacho acknowledged that Mesa was first appointed on June 18, 2007, and
hrthermore expressly stated that Mesa's "term has since expired." (ER at
ER0036 7 2(ii), ER0040.) The Governor's letter then purported to appoint
Mesa to a new term of two (2) years to the GEC. (Id.) The Governor's
December 22, 2010, letter was preceded by a December 13, 2010, letter from
the Republican Party Chairman Jess Torres to Gov. Camacho. (ER at ER0036 7
2(i), ER0038.) In that letter, Torres states that he was "verbally informed by the
[GEC]" that Mesa's term "has expired." (Id.) Torres went on to nominate
three (3) individuals, including Mesa, for the Governor's consideration in
appointing a Republican member to the GEC. (Id.) Torres requested the
reappointment of Mesa. (Id. However, there is no indication that such
nomination, or any prior nominations of Mesa preceding his initial appointment
on June 18, 2007, resulted from "a duly passed resolution" of the Republican
Party. (ER at ER003 T[ 5, ER0034, ER0037 7 3, ER0046-0047.)
2. Martha Ruth-Ruth was nominated by Guam Republican Party
Acting State Chairman Victor F. Cruz, on October 27, 2008, to fill the vacancy
created by the resignation of Ms. Jennifer Calvo-Quitugua. (See ER at ER002 7
4(ii), ER007.) On October 29, 2008, Gov. Camacho appointed Ruth to a two-
year term, which, assuming the appointment to be valid, expired on October 28,
2010, prior to the 2010 General Election. (ER at ER002 7 4(ii), ER006.) In a
letter dated December 22, 2010, Gov. Camacho acknowledged that Ruth was
first appointed on October 29, 2008. (ER at ER0036 T[ 2(ii), ER0041.) The
Governor furthermore expressly stated that Ruth's "term has since expired."
(Id.) The Governor's letter then purported to appoint Ruth to a new term of two
(2) years to the GEC. (Id.) The Governor's December 22, 2010, letter was
preceded by a December 13, 201 0, letter from the Republican Party Chairman
Jesus Torres to Gov. Camacho. (ER at ER0036 T[ 2(i), ER0039.) In that letter,
Torres states that he was "verbally informed by the [GEC]" that Ruth's term
"has expired." (Id.) Torres went on to nominate three (3) individuals,
including Ruth, for the Governor's consideration for appointment to the GEC.
(Id.) Torres requested the reappointment of Ruth. (Id.) However, there is no
indication that such nomination, or any prior nomination of Ruth preceding her
initial appointment on October 29, 2008, resulted from "a duly passed
resolution" of the Republican Party. (ER at ER003 7 5, ER0034, ER0037 7 3,
EROO46-47.)
3. John Taitano-Taitano, apparently, was originally appointed on June
30, 2006, by Gov. Camacho to serve on the GEC. (See ER at ER002 7 4(iii),
ER009.) On June 29, 2009, the Republican Party Chairman Torres nominated
three (3) persons, namely, Taitano, Rudy Matanane, and Victor F. Cruz, Jr., but
recommended Taitano to fill the vacancy created by the expiration of Taitano's
previous term. (ER at ER002 7 4(iii), ER0010.) Subsequently, on July 28,
2009, Acting Gov. Michael W. Cruz purportedly appointed Taitano to a new
two-year term. (ER at ER002 7 4(iii), ER009.) The GEC does not have in its
files a duly passed resolution of the Republican Party showing that the Party
recommended that Taitano be appointed to serve on the GEC. (ER at ER003 7
5, ER0034.) Therefore, Taitano was not reappointed pursuant to 3 G.C.A. fj
2 10 1 (a), as required by law.
4. Alice Taijeron-From GEC documents, it appears Taijeron was
initially appointed on April 5, 2007, by Gov. Camacho presumably to a two-
year term. (& ER at ER002 7 4(v), EROO 17-1 8.) On July 27, 2009, the
Democratic Party Chairwoman, Pilar C. Lujan, nominated and recommended
Taijeron to be reappointed to fill her own previously expired term. (ER at
ER002 7 4(v), EROO 19-20.) On October 16, 2009, Gov. Camacho purportedly
reappointed Taijeron to a new two-year term. (ER at ER002 7 4(v), ER0017-
18.) The Democratic Party did not recommend, via a duly passed resolution,
that Taijeron be appointed to serve on the GEC for her most recent term. (ER at
ER003 7 5, ER0034, ER0053 3-4.)2 Therefore, Taijeron was not reappointed
pursuant to 3 G.C.A. 5 2 10 1 (a), as required by law.
5. John Ter la jeFrom GEC documents, it appears that Terlaje was
initially appointed on April 5, 2007, by Gov. Camacho presumably to serve a
two-year term. (See ER at ER002 7 4(iv), ER0012-13.) On July 27, 2009,
Chairwoman Lujan nominated and recommended Terlaje to be reappointed to
fill his own expired term. (ER at ER002 7 4(iv), EROO 14- 15.) On October 16,
The only resolutions on file which are at the Office of the Governor are from 2007. (B ER at ER003 7 5, ER0034.) This shows that the Democratic party knows what a "duly passed resolution" is, as such resolutions have been presented before in connection with previous appointment to office of those certain GEC members, but which appointments and terms have since expired. (ER at ER0036 7 2(iii)(a), (b), ER0042-45.)
2009, Gov. Camacho purportedly reappointed Terlaje to a new two-year term.
(ER at ER002 7 4(iv), ER00 12- 13 .) The Democratic Party did not recommend,
via a duly passed resolution, that Terlaje be appointed to serve on the GEC for
his most recent term. (See ER at ER003 7 5, ER0034, ER0053 77 3-4.)
Therefore, Terlaje was not reappointed pursuant to 3 G.C.A. 5 2101(a), as
required by law.
6. Joshua T e n o r i d n August 5,2008, Chairwoman Lujan nominated
three (3) persons, namely Attorney Mitchell Thompson, Mr. Don Weakley, and
Tenorio, for the Governor to select from to fill the vacancy created by the
resignation of Mr. Larry Rarnirez. (See ER at ER003 7 4(vi), ER0030.) On
August 6, 2008, Acting Gov. Cruz appointed Mr. Weakley to serve the period
of .the unexpired term of Mr. Florencio T. Ramirez, which was set to expire on
February 23,2009. (ER at ER003 7 4(vi), ER0029.) Apparently, Mr. Weakley
resigned soon after his appointment. (ER at ER003 7 4(vi), ER0027.) On
• October 10,2008, Chairwoman Lujan nominated four (4) persons, one of whom
was Tenorio, to fill the vacancy created by ,the resignation of Mr. WeakleyIMr.
Ramirez (the term of which again, was to expire on February 23, 2009). (Id,)
On October 14, 2008, Acting Gov. Cruz appointed Tenorio to fill the unexpired
term of Mr. Ramirez. (ER at ER003 7 4(vi), ER0026.) Subsequently, on July
27, 2009, Chairwoman Lujan nominated Tenorio to be reappointed to a new
two-year term. (ER at ER003 7 4(vi), ER0024-25.) On October 16,2009, Gov.
Camacho purportedly appointed Tenorio to a new two-year term. (ER at
ER003 7 4(vi), ER0023.) The Democratic Party did not recommend, via a duly
passed resolution, that Tenorio be appointed to serve on the GEC. (ER at
ER003 7 5, ER0034, ER0053 77 3-4.) Therefore, Tenorio was not reappointed
pursuant to 3 G.C.A. 5 2 10 1 (a), as required by law.
7. Robert Cruz--Cruz was selected and appointed as the seventh
member of the GEC during the GEC board meeting held on October 10, 2007.
(See ER at ER003 7 4(vii), ER003 1-33.) His term therefore expired on October
9, 2009, more than a year prior to the 2010 General Election. (Id.) It appears
that the GEC members have not since voted to reselect and reappoint Cruz
pursuant to 3 G.C.A. 5 2101(a) since expiration of his two-year term. (ER at
ER002 7 3 .)
SUMMARY OF THE ARGUMENT
Petitioners seek an extraordinary writ from this Court declaring the
actions taken by Respondents on or about November 6, 2010, and November
30, 2010, invalid, ultra vires, and without any legal force or effect because the
term of office of three (3) GEC members (Ruth, Mesa, and Cruz) had expired
before the two dates in question. Furthermore, the actions of Respondents are
also invalid because the terms and appointments of all six (6) of the politically-
appointed members (Ruth, Mesa, Taitano, Taijeron, Terlaje, and Tenorio) were
void ab initio because their recommendations for appointment did not result
from "a duly passed resolution" of their respective political parties as strictly
required by statute, 3 G.C.A. 5 2 10 1 (a).
Consequently, all seven (7) putative members of the GEC lacked legally
valid appointments to office prior to November 6, 2010, and November 30,
2010. The law prohibits any action by the Commission without a quorum of
four (4) members. 3 G.C.A. 5 2101(d) ("A majority of the members of the
Commission shall constitute a quorum and no action of the Commission shall
be authorized except upon a vote of four (4) of the members."). Indeed, without
a quorum of lawhlly appointed members, the GEC lacked the legal authority to
act on November 6, 20 10, when it voted to certify the results of the General
Election held on November 2, 2010, and when it issued certificates of election
on or about November 30,20 10, signed by four (4) putative members. Because
no quorum of legally valid members existed on the dates in question, any act
taken by the GEC and its putative members, including, but not limited to, the
tabulation of votes, certification of the election results, and issuance of
certificates of election, is void ab initio and ultra vires.
Petitioners therefore ask that this Court issue its writ to command
Respondents to (i) vacate and expunge the action taken by Respondents at a
purported meeting of the GEC held on November 6, 20 10, to certify the results
of the gubernatorial election held on November 2, 20 10, (3 G.C.A. $ 1 1 123);
(ii) cancel, invalidate, and annul the certificates of election, (3 G.C.A. $ 11 133),
signed on or about November 30, 2010, by Mesa, Ruth, Taitano, and Cruz, on
grounds that those individuals who signed the certificates lacked legally valid
appointments as members of the GEC, thereby rendering their signatures
invalid; and (iii) restrain Respondents from engaging in hrther action to certify
the election results of the 2010 General Election and to issue and maintain
certificates of election to Calvo-Tenorio.
ARGUMENT
I. WRIT OF MANDATE
A. The Remedy of Mandamus is Warranted
The Court may issue mandamus relief to any inferior tribunal,
corporation, board, or person to compel the performance of an act which the
law specially enjoins, as a duty resulting from an office, trust, or station.
7 G.C.A. $ 3 1202. On the verified petition of the party beneficially interested,
the writ must be issued in all cases where there is not a plain, speedy, and
adequate remedy in the ordinary course of law. 7 G.C.A. $ 3 1203. However,
where, as here, the issue to be determined is of great public importance and
must be resolved promptly, a petitioner need not show lack of a plain, speedy,
and adequate remedy at law. See Underwood, 2006 Guam 19 77 13- 17.
Traditionally, to obtain issuance of a writ of mandamus, a petitioner must
normally demonstrate, among other things, that the respondent has failed to act
on a clear ministerial duty to perform an act specifically required by law. See
Limtiaco v. Guam Fire Dep't, 2007 Guam 10 7 9; Morgan v. Citv of Los
Aneeles Bd. of Pension Comm'rs, 85 Cal. App. 4th 836, 842 (2000).'
However, mandamus has also been appropriately used to "annul or restrain
administrative action already taken which is in violation of law." Bodinson
Mfg. Co. v. Cal. Emploment Comm'n, 17 Cal. 2d 321, 329 (1941); see also
TransdydCresci JV v. City & County of San Francisco, 72 Cal. App. 4th 746,
752 (1999) ("Mandamus relief is also available to 'correct those acts and
decisions of administrative agencies which are in violation of law . . ..' ")
(quoting Bodinson Mfg. Co., 17 Cal. 2d at 329). Moreover, courts have used
mandamus to expunge a void order entered by an election board, Caldwell v.
3 See also Venice Town Council, Inc. v. Citv of Los Angeles, 47 Cal. App. 4th 1547, 1558 (1996) ("A writ of mandate 'will issue against a county, city, or other public body or against a public officer.'); Underwood, 2006 Guam 19 7 17 n.5 ("'Mandamus is clearly the proper remedy for compelling an officer to conduct an election according to law."') (quoting Jolicoeur v. Mihaly, 488 P.2d 1, 3 n.2 (Cal. 1971); Miller v. Greiner, 60 Cal. 2d 827, 830 (1964); Amtz v. Superior Court, 187 Cal. App. 4th 1082, 1089, 1091 (2010).
Nolan, 522 N.E.2d 175, 18 1 (Ill. App. Ct. 1988), and to order an election board
to cancel or void a certificate of election, Hembree v. City of Stilwell, 597 P.2d
121 8, 122 1 (Okla. 1979). Indeed, courts have held that the expungement of a
void order is a ministerial duty appropriate for mandamus relief. See, e.g., State
ex rel. Thomas v. Banner, 724 S.W.2d 8 1, 85 (Tex. Crim. App. 1987) (finding
mandamus appropriate where judge who enters void order, for court's lack of
jurisdiction, has a ministerial duty to expunge void order).
The remedy of mandamus is warranted here. Petitioners are beneficially
interested parties, being the Democratic Party's candidates for the offices of
governor and lieutenant governor in the 2010 General Election. " 'A
beneficially interested party is a person that has some special interest to be
served or some particular right to be preserved or protected over and above the
interest held in common with the public at large."' Sorensen Television Svs.,
Inc. v. Superior Court of Guam, 2006 Guam 21 7 14 (quoting People v.
Superior Court (Laxamanah 2001 Guam 26 7 24) (internal quotations omitted).
The certification of the General Election results for the offices of governor and
lieutenant governor on November 6, 2010, in favor of Petitioners' opponents,
was made by an improperly constituted GEC board, thereby rendering any such
attempted certification void and invalid. The same is true as to the certificates
of election issued in favor of Calvo-Tenorio, which were signed on November
30, 2010, by four (4) GEC members either lacking valid appointments to office
or having expired terms. If such actions remain undisturbed without
intervention by this Court, the unlawful swearing-in to office of the Republican
Party's gubernatorial candidates, Calvo-Tenorio, would presumably occur as
scheduled on or about Monday, January 3,20 1 1, to the detriment of Petitioners.
There exists no other plain, adequate, and speedy remedy to challenge
Respondents and their illegal, ultra vires, and invalid certification of results and
execution of certificates of election. Petitioners have no recourse under the
Administrative Adjudication Law ("AAL"), 5 G.C.A. Chapter 9, which by its
terms applies only where the "legal rights, duties or privileges of specific
parties are required by law to be determined after an agency hearing." 5 G.C.A.
5 9200. Nowhere in the Guam Election Code, Ti.tle 3 of the Guam Code
Annotated, is the GEC required by law to certify the election results, 3 G.C.A. 5
1 1 123, and make certificates of election, 3 G.C.A. 5 1 1 133, after an agency
hearing, see 3 G.C.A. Ch. 11. Also, assuming that the AAL provides an
administrative remedy, Petitioners were not required to exhaust remedies before
the GEC since the Commission, unlawfully constituted, lacks jurisdiction to
determine or even entertain the matter, and, as the inauguration of Calvo-
Tenorio is set to occur in seven (7) days, Petitioners will be irreparably harmed
if judicial intervention is withheld until a final administrative decision is
rendered. Nat'l Union Ins. Co. of Pittsburg. Pa. v. Ins. Comm'r of ~ u a m ?
Civ. No. 83-0037A, 1984 WL 48863, at *5 (D. Guam. App. Div. May 4, 1984)
(citing County of Alpine v. County of Tuolumne, 49 Cal. 2d 787, 798 (1958))
(doctrine of administrative remedies inapplicable where the agency lacks
jurisdiction to make a judicial determination of the type involved); Alta Loma
Sch. Dist. v. San Bernardino County Comm. on Sch. Dist. ~eor~anizat ion? 124
Cal. App. 3d 542, 555 (1981) (exceptions to exhaustion doctrine include when
administrative board is without jurisdiction and where irreparable harm will
result if judicial intervention is withheld until final administrative decision is
rendered). Furthermore, even if an adequate, speedy remedy did exist, the
instant petition falls within the exception recognized by this Court because, as
this Court has already determined, it presents a matter of great public
importance requiring prompt resolution. See Underwood, 2006 Guam 19 77
13- 17.
4 Nat'l Union was decided by the District Court of Guam Appellate Division. While decisions of the Appellate Division are considered non- binding authority on the Guam Supreme Court, this Court has held that it "'will not divert from such precedents unless reason supports such deviation."' Underwood v. Guam Election Comm'n (Camacho), 2006 Guam 17 7 33 n.2 (quoting People v. Quenna, 1997 Guam 6 7 13 n.4).
In Dep't of Agric. v. Civil Serv. Comm'n (Rojas), 2009 Guam 19 7 19, this Court cited Alta Loma in recognizing an exception to the exhaustion doctrine, where the administrative agency made it clear that it would be futile to pursue the administrative process to conclusion.
The issue whether there are validly certified results of the 2010
gubernatorial race must be resolved. If there are no validly certified results,
there are no valid gubernatorial successors. Under such circumstances, the
Organic Act requires that the incumbent governor and lieutenant governor
(here, Gov. Camacho and Lt. Gov. Cruz) shall hold office until such time as
their "successors are elected and qualified." See 48 U.S.C. 5 1422 ("The
Governor and Lieutenant Governor shall hold office for a term of four years
and until their successors are elected and qualiJied.") (emphasis added). The
issue of whether there was a valid certification of results by the GEC implicates
whether successors to the governor and lieutenant governor have been "elected
and "qualified," as those terms are used in 5 1422 of the Organic Act. Id.
B. The November 6,2010 Certification and the Certificates of Election Should be Annulled and Canceled Because All Purported Members of the GEC Lacked Valid Appointments to Office
Here, either the selection or appointment to office, or both, of all seven
(7) members of the GEC suffered from fatal infirmities. The selection and
appointment of all GEC members are governed specifically by 3 G.C.A. 5
2101(a) .6
It is anticipated that Respondents may argue that 4 G.C.A. 8 2103.9 applies to confer a 90-day-plus-three-(3)-legislative-day extension after the expiration of a board member's term. However, 5 2103.9, by its own terms, is
Cfootnote continues on following page ...)
Section 2 10 1 provides in relevant part as follows:
8 2101. Election Commission: Composition; Removal of Members; Chairman; Quorum.
(a) There is within, as an autonomous instrumentality and an independent commission of the government of Guam, the Election Commission. The Commission shall consist of seven (7) members, all of whom shallbe eligible voters on the date of their appointment. I Maga'lahen Gudhan [Governor] shall appoint six (6) members from recommendations made by the recognized political parties of Guam. Each of the recognized political parties, via a duly passed resolution, shall recommend an equal number of names to I Maga'lahen Guiihan and the six
inapplicable as it only applies to individuals whose appointment to office requires legislative confirmation. See 4 G.C.A. 8 2103.9. The section is entitled "Time Limits on Acting Capacity for Positions Requiring Legislative Approval." Id. None of the appointments to the GEC involve confirmation by the Guam Legislature. 3 G.C.A. 8 2101(a). Consequently, no holdover period under 8 2103.9 applies to the expired terms of members Ruth, Mesa, and Cruz, whose terms expired prior to the General Election.
Moreover, applying 4 G.C.A. 8 2103.9 to the GEC would render 3 G.C.A. 8 2101(a) "nugatory." When a court must interpret related statutory provisions, an interpretation that renders one section nugatory should be avoided if possible. Select Base Materials, Inc. v. Bd. of Equalization, 5 1 Cal. 2d 640,647 (1959). Title 3 of the Guam Code Annotated, specifically 3 G.C.A. 8 2101(a), provides a comprehensive statutory scheme for the appointment and function of the GEC. Reading section 2 101 (a) to provide for a holdover term would be clearly inconsistent with the plain language of the statute and would "improperly usurp the authority" vested in the Governor and the GEC itself. For these reasons, 3 G.C.A. 8 2101(a), rather than 4 G.C.A. 8 2103, must be regarded as the controlling provision.
Furthermore, the rule of statutory construction provides that "if a specific statute is enacted covering a particular subject, the specific statute controls and takes priority over a general statute encompassing the same subject." Estate of Kramme, 20 Cal. 3d 567, 576 (1978); see also Camacho v. Estate of Gumataotao, 20 10 Guam 1 T[ 19.
(6) members appointed by I Maga'lahen Guihan shall be appointed so that the recognized political parties are equally represented. ... One (1) member shall be selected and appointed by the six (6) members appointed by I Maga 'lahen Gudhan. The appointment of the seventh member of the Commission shall be concurred in by at least four (4) members. The members shall serve for a term of two (2) years. If a vacancy should occur on the Commission, said vacancy shall be filled for the remainder of the term only, and by the method originally prescribed for its appointment. . . . .
3 G.C.A. 8 2101 (a) (emphasis added). Section 2101(d) then provides that "[a]
majority of the members of the Commission shall constitute a quorum and no
action of the Commission shall be authorized, except upon a vote of four (4) of
the members." 3 G.C.A. 8 2 101(d).
Here, an examination of the GEC putative members' purported
appointments makes clear that all seven (7) were serving illegally in violation
of 3 G.C.A. 8 2101(a).
Mesa's term expired on September 2, 2008, more than two years before
the General Election. That appointment was not recommended "via a duly
passed resolution" of the Republican Party. Mesa was purportedly reappointed
by the Governor only on December 22,2010. However, even that appointment
was not pursuant to a "duly passed resolution" of the party.
Ruth's term expired on October 28, 2010, before the General Election.
That appointment was not recommended "via a duly passed resolution" of the
Republican Party. Ruth was purportedly reappointed by the Governor only on
December 22, 2010. However, even that appointment was not pursuant to a
."duly passed resolution" of the party.
Taitano was purportedly appointed to a two-year term on July 28, 2009;
however, he was not recommended for appointment via a duly passed
resolution by the Republican Party, and, thus, any appointment was invalid.
The most recent appointments for Taijeron, Terlaje, and Tenorio to two-
year terms occurred on October 16, 2009; however, none of the appointments
arose from a recommendation for appointment via a duly passed resolution of
the Democratic Party. Consequently, their appointment by the Governor was
invalid.
Cruz's two-year term expired on October 9, 2009. Furthermore, there
was no reselection or reappointment of him by GEC members which occurred
subsequent to the expiration of his term. Therefore, Cruz was not a validly
serving member at the time of the General Election and afterward.
As an administrative agency, the GEC is a creature of Guam statute and
can only act within the authority and powers bestowed upon it by the
Legislature; it has no general or common law powers. See, e.g., Turlock
Irrigation Dist., 71 Cal. App. 4th 948, 953, 84 Cal. Rptr. 2d 175 (1999); Bus. &
Professional People for the Pub. Interest v. 111. Commerce Comm'n, 136 111. 2d
192, 243-44, 555 N.E.2d 693 (1989). Guam law requires the vote of at least
four (4) validly serving members in order for the GEC to properly act.
Therefore, all actions taken by the GEC and its putative members during the
period of the GEC's unlawful constitution are void ab initio, ultra vires, and of
no legal force and effect. See, ex., Turlock Irrigation Dist, 71 Cal. App. 4th at
95 1 ; Siddens v. Indus. Comm'n, 304 Ill. App. 3d 506, 5 10-1 1, 7 1 1 N.E.2d 18
(1999). Ultra vires acts are those performed with no legal authority and are
characterized as void on the basis that no power to act existed, even where
proper procedural requirements are followed. See S. Tacoma Way, LLC v.
State, 233 P.3d 871, 874 (Wash. 2010); see also Haslund v. City of Seattle, 547
P.2d 1221, 1230 (Wash. 1976). "Ultra vires acts cannot be validated by later
ratification or events." S. Tacoma Way, LLC, 233 P.3d at 874.
Courts have the power to declare invalid and vacate the actions of an
administrative board when such board lacks a quorum of bona fide, legally
appointed members. City of Hoboken v. City of Jersey City, 789 A.2d 668,
675-78 (N.J. Super. Ct. Law Div. 2001) (finding no quorum due to expired
terms of board members and appointment of an unqualified member); see also
People v. White, 67 N.E.2d 498, 500 (Ill. App. Ct. 1946) (stating that where a
court ordered the municipal election board dissolved on the ground that the
board was not lawfully constituted under the law, the subsequent decision of the
board was invalid). '"[Tlhere is no doubt but that equity will exercise
jurisdiction to restrain acts or threatened acts of public corporations or of public
officers, boards, or commissions which are ultra vires and beyond the scope of
their authority, outside their jurisdiction, unlawhl or without authority."'
League of Women Voters of Atlanta-Fulton County, Inc. v. City of Atlanta, 264
S.E.2d 859, 861 (Ga. 1980) (quoting Irwin v. Crawford, 78 S.E.2d 609, 611
(Ga. 1953)) (internal quotations omitted).
In this case, the GEC, through a majority vote of its putative members,
purported to certify the election results of the General Election on November 6,
2010, and to issue certificates of election to Calvo-Tenorio on November 30,
2010. Both actions cannot be allowed to stand as both resulted from the acts of
GEC members lacking an effective term of office, or members whose
appointment to office was null and void to begin with because it occurred in
contravention of the GEC board appointment statutes. Petitioners respecthlly
request that this Court grant their petition to cancel and expunge .the
certification of results on November 6, 2010, and the certificates of election
issued November 30,20 1 0 . ~
If Respondents' acts are not expunged as ultra vires and void, then the procedural due process rights of Petitioners may be violated. See, e.g., In re July-August, 2003 DeKalb County Grand Jury, 595 S.E.2d 674,676-77 (Ga. Ct. App. 2004).
11. WRIT OF PROHIBITION
In addition, or in the alternative, Petitioners request that the Court issue a
writ of prohibition (or other appropriate relief) against Respondents. A writ of
prohibition "arrests the proceedings of any tribunal, corporation, board, or
person exercising judicial functions, when such proceedings are without or in
excess of the jurisdiction of such tribunal, corporation, board or person." 7
G.C.A. 5 31301; Topasna, 1996 Guam 5 7 4. Such writs may be issued only
upon the verified petition of the person beneficially interested and "where there
is not a plain, speedy, and adequate remedy in the ordinary course of law." 7
G.C.A. 5 3 1302; Topasna, 1996 Guam 5 7 5.
As discussed earlier, Petitioners are beneficially interested parties and
there is not a plain, speedy, and adequate remedy available to them. Moreover,
this Court found in its December 23, 2010, Order, that the matter involved in
this petition is of great public importance and must be resolved promptly. Since
the GEC was and is unlawfully constituted and therefore, along with its seven
(7) putative members, has acted and is acting in excess of its jurisdiction,
Respondents' actions to certify the election results and issue certificates of
election must be canceled and expunged. Additionally, they must be restrained
from engaging in further action to certify the election results and to issue and
maintain the certificates of election to Calvo-Tenorio.
Therefore, Petitioners respectfilly request that this Court issue a writ of
prohibition canceling and expunging Respondents' actions to certify the
election results and issue certificates of election and restraining them from
taking firther action to accomplish such certification and issuance of
certificates of election.
CONCLUSION
For the reasons set forth herein and in the Petition, Petitioners
respectfilly ask this Honorable Court to grant the relief requested in their
Petition.
RESPECTFULLY SUBMITTED this 27th day of December, 2010.
LUJAN AGUIGPI - & PEREZ LLP
DAVID 3. LUJAN, E Attorneys for Petitione
PROOF OF SERVICE
I hereby certify that I caused or will cause a copy of the foregoing as well
as other concomitantly filed documents to be served on the following:
Cabot Mantanona LLP Edge Building, 2nd Floor 929 South Marine Corps Drive Tamuning, Guam 969 13
Attorneys for Respondents
Philips & Bordallo, P.C. 4.10 West O'Brien Drive Hagitfia, Guam 96910
Attorneys for Real Parties in Interest
Dated: December 27,20 10.
LUJAN AGUIGUI & PEREZ LLP
Attorneys for Petitioners I